At

the panel’s conference on March 14, 1997, following oral argument of the 1 case, Judge F loyd R. Gibson concurred in the result reached in this opinion. Judg e Gibsonhas been disabled by illness from reviewing the opinion, which is being filed in the interest of avoiding undue delay.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________ No. 96-3094

___________ Frederick Darnell Moore, *
* Appellant, *
* v. * Appeal from the Unite d States
* District Court for the Mitchell Novak, Correctional Officer; * Dis t ric t o f Neb r aska Craig Schmidt, Correctional Officer, *
* Appellees. *

___________ Submitted: March 14 , 1997 Filed: May 22, 1998

___________ Befor e McMILLIAN, FLOYD R. GIBSON, and HANSEN, Circui t 1 Judges.

___________-2-

McMILLIAN, Circuit Judge.The Honorable David L. Piester, United States Magistrate Judge for the District 1 of Nebra ska. The parties consented to trial of the case before a magistrate judg e pursuant to 28 U.S.C. § 636(c).

-3- FrederickDarnell Moore appeals from a final judgmen t entered in the District Court for the District o f 2 Nebraska, following a bench trial, in favor o f defendants Mitchel No vak and Craig Schmidt, in his 42 U.S.C. § 1983 civil rights action. Moore v. Novak , No. 4:C V94-3328 (D. Neb. June 27, 1996) (memorandum of decision). Fo r reve rsal, Moore argues the district judge’s findings o f fact are clearly erroneous. For the reasons discusse d below, we affirm the judgment of the district court.

Th e district court had subject matter jurisdictio n over this civil rights action under 28 U.S.C. § 1343; the notice of appeal was timely filed as required by Fed. R. App. P. 4(a), and this court has appellate jurisdictio n under 28 U.S.C. § 1291.

This case was tried before a magistrate judg e pursuant t o the consent of the parties under 28 U.S.C. § 636(c). Jury trial was waived. The trial to ok two days. The fol lowing statement of facts is taken in large par t from the memorandum opinion of the magistrate judge.

In th e early morning hours of September 10, 1993 , Linc olnpolice officer Terri Lobdell arrested Moore i n co nnectionwith a burglary investigation. Lobdel l hand cuffed Moore and transported him to the Lancaste r Co untyjail. Moore was intoxicated and loudly aske d Lobdell about personal property he claimed ha d been taken-4-

fromhim. Upon arriving at the jail, Lobdell drove t o the garage door. Novak, a jail correctional officer, saw Lobd ell’s patrol car approach on a surveillance vide o monit or and pressed a switch to open the garage door

. Once inside the garage, Lobdell got out of the patro l car, picked up Moore’s personal property, and remove d Moore from the rear seat. Lobdell walked Moore to th e jail entrance door. Moore continued-5-

to ask Lobdell about his personal property. Novak sa w Lobdell and Moore on the surveillance video monitor an d pressed a switch to open the jail entrance do or. Lobdell and Mo ore went through the door and into the elevator

. Wh en they got off the elevator, Lobdell was slightl y be hind Moore and to his right. Moore’s hands wer e hand cuffed behind his back. Lobdell held Moore’ s persona l property in her right hand and Moore’s uppe r rig ht arm in her left hand. They walked down a hallwa y to one of the doors to the jail booking area. As the y approac hed the door, Moore began to shout at Lobdell

. Novak could see Moore and Lobdell through the glas s windows ne xt to the door to booking area. Novak pressed a switch to open the door. Lobdell released Moore’s arm, shifted Moore’s personal property to her left hand, an d opene d the door with her right hand. Moore and Lobdel l walked through the door.

Novak p icked up a Polaroid camera and walked towar d the door. He was preparing to take a photogr aph of Moore
as part of the booking process. Lobdell told Moore t o stand on a square painted on the floor so Novak coul d take his photograph. Moore shouted an obscenity a t Lobdell and kicked her in the leg, knocking he r backwards. Novak grabbed Moore from behind and told him to ca lm down. Moore continued to shout and struggle

. Schm idt, a jail correctional officer, was working at a computer in the booking area. He heard shout ing and went to help Novak and Lobdell. Schmidt grabbed M oore’s right arm; Novak held Moore’s left arm. They turne d him toward the booking counter and told him to drop to his knees

. Moore refused and continued to struggle. Schmidt removed his “s tun” gun, displayed it to Moore and warned Moor e-6-

tha t he would use it if Moore did not comply with thei r comm ands. Moore shouted more obscenities and continue d to s truggle and attempt to break free. Schmidt the n appli ed the stun gun to Moore’s lower back for three t o five se conds. Moore bent over and Schmidt withdrew th e stun gun. Novak and Schmidt forced Moore to the floor

.

Bythis time, another jail correctional officer , Jason Hellmuth, had come to help Novak and Schmidt

. Moore was on the floor. Another jail correctiona l officer,-7-

Margaret Vaske, performed a pat down search and remove d
more personal property. The four correctional officer s placed Moore in a safety cell; Novak removed th e hand cuffs and asked Moore if he needed medica l assista nce. Moore did not respond. Novak repeated th e questio n; Moore told Novak that he was fine and refuse d medical as sistance. Moore remained conscious throughout th e entire incident. Novak and Schmidt reported th e inciden t to shift supervisor Shauna Baird. Baird ha d seen the four correctional officers holding M oore down on the floor. Baird told Novak and Schmidt to w rite reports about the incident.

Asurve illance video camera in the booking area ha d recorded t he incident. Baird stopped the video cassette
reco rder (VCR), rewound the videotape, and played bac k the videotape on the video monitor. Baird te stified that Novak was standing beside her when she played back th e videotape and that she assumed he watched it at the same time. Baird concluded that the officers had complie d with de partment policy regarding the use of force an d stun g uns. Baird testified that the videotape did no t sh owthe actual use of the stun gun or defendants ’ “body-slamming” Moore to the floor. Baird then rewoun d the vi deotape, removed it from the VCR and then eithe r hand ed it to investigating officer Ann Lubow (her nam e was Foster at the time of trial) or placed the videotape
on the booking counter for Lubow to use in he r investigat ion. Novak testified that he never viewed the videotape. Lubow wrote a report about the in cident based
on s tatements from Lobdell and Novak. Lubow testifie d tha t she did not take the videotape. The videotap e-8-

disappeare d and, despite repeated attempts to locate it, was still missing at the time of trial.

Moore w as charged and convicted in state court wit h assaulting a police officer. His conviction was affirmed byt he state court of appeals; further review by th e state supreme court was denied.

Moore then filed this 42 U.S.C. § 1983 civil right s acti on in federal district court, alleging Novak an d Schm idt used excessive force in restraining him, Nova k
was-9-

mo tivated by racial animus in violation of the equa l protection clause, and Novak either destroyedor secreted the surveillance videotape of the incident, thus makin g it una vailable for use in his state criminal trial, i n vio lation of the due process clause. Moore did no t challenge his arrest and admitted that he was intoxicated and v erbally abusive. However, he denied that he ha d inte ntionallykicked Lobdell. He alleged that, eve n thoug hhe is a medium-sized person and his hands wer e handcuffed behind his back, Novak shouted a racial slu r at him, gr abbed him by the handcuffs and one arm, lifted him up, and then threw him to the floor. He alleged that Schm idt wrongfully used the stun gun against his neck , when he wa s handcuffed and being held down on the floor, until he l ost consciousness. He sought compensatory and puni tive damages, costs and expenses, and attorney’ s fees.
Following a bench trial, the district court foun d that Novak and Schmidt did not use excessive force i n rest raining Moore. Slip op. at 10-12. The distric t
cour t specifically found that both the decision to us e force a nd the amount or degree of force used-- physica l
re straint and use of the stun gun-- were objectivel y reas onable because Moore was not under control, eve n thou ghhe was handcuffed, and represented a continuin g threat to his physical safety and that of the officers

. Moore was intoxicated, agitated, verbally abusive, ha d kick ed a police officer, repeatedly refused to compl y withofficers’ legitimate commands, continued t o struggle, and attempted to break free. Id. The district
cour t expressly credited the testimony of the officer s and expressly rejected Moore’s version of the incident ,-10-

includi ng his allegations that Novak threw him to th e flo or, Novak used racially derogatory language, an d Schmidt wrongfully used the stun gun. Id. at 4 & nn.4-5, 5-6 & n. 7, 8 & n.9, 12 & n.12 (jail policy bars use o f stun gun when inmate is “restrained and controlled” an d lists “ handcuffed” as example of when inmate could b e considered “restrained and controlled”; howev er, officers test ified that Moore was not “controlled” despite bein g handcuffed ). The district court also found there was no evid ence of racial discrimination, id. at 13, and tha t Moor e’s due process claim was barred because a findin g that Novakhad destroyed or secreted the videotape would necessarily imply the invalidity of Moore’s criminal-11-

co nviction, which had not been reversed, expunged , invalidated, or otherwise called into question. Id. a t 14 -15, citing Heck v. Humphrey , 512 U.S. 477 (1994)

. This appeal followed.

For r eversal, Moore argues the district court’ s findi ngs of fact are clearly erroneous. He argues w e shou ld not defer to the district court’s credibilit y determinations because defendants’ version of th e incident was so internally inconsistent and implausibl e on its face that a reasonable factfinder would not hav e credited it. He also argues that the unexpla ined absence of t he surveillance videotape raised a clear inferenc e that it would have supported his version of t he incident.

We review the district court’s findings of fact unde r the c lear error standard of review set forth in Fed. R

. Civ

. P. 52(a) and clarified by the Supreme Court i n Anders on v. City of Bessemer City , 470 U.S. 564 (1985 ) ( And erson ). “A finding is ‘clearly erroneous’ when , although there is evidence to support it, the reviewin g court on the entire evidence is left with the definit e and firm conviction that a mistake has been committed. ” United Sta tes v. United States Gypsum Co. , 333 U.S. 364, 395 (1948).

If the district court’s account of the evidence is plausible in light of the record viewed i n its e ntirety, the court of appeals may no t rever se it even though convinced that had i t been sitting as the trier of f act, it would have weig hed the evidence differently. Where ther e are t wo permissible views of the evidence, th e-12-

factfinder’s choice between them cannot b e clearly erroneous.

. . . . When findings are based on determination s regarding the credibility of witnesses, Rul e 52(a) demands even greater deference to th e trial court’s findings; for on ly the trial judge canbe aware of the variations in demeanor an d tone of voice that bear so heavily on th e listener’s-13-

under standing of and belief in what is said

. This is not to suggest that the trial judge may insul ate his [or her] findings from review b y denominating them credibility determinations , for factors other than demeanor and inflectio n go into the decision whether o r not to believe a wit ness. Documents or objective evidence ma y contradict the witness’ story; or the stor y itself may be so internally inconsistent o r impla usible on its face that a reasonabl e factf inder would not credit it. Where suc h facto rs are present, the court of appeals ma y well find clear error even in a findin g purportedly based on a credibilit y determination. But when a tri al judge’s finding is based on his [or her] decision to credit the testimonyof one of two or more witnesses, each of wh om has told a coherent and faciall y plausible story that is not contradicted b y extrinsic evidence, that finding, if no t internallyinconsistent, can virtually never b e clear error.

Ande rson , 470 U.S. at 574-75 (citations omitted); see , e.g., FDIC v. Lee , 988 F.2d 838, 841-42 (8th Cir. 1993).

In the present case the district court correctl y applied the Fourth Amendment “objective reasonableness ” tes t to Moore’s excessive force claim. Slip op. at 9 & n.11; s ee, e.g., Graham v. Connor , 490 U.S. 386, 394-9 5 (1989) (ho lding all claims that law enforcement officers used excessive force in course of arrest, investigator y stop or other seizure of a free citizen should b e analy zed under Fourth Amendment standard of objectiv e reasonableness rather than substantive due process)

. “The question for the [factfinder] is whether, judgin g-14-

from the perspective of a reasonable officer at the scene of t he arrest, the totality of the circumstance s justifies the use of the force used.” Foster v

. Metr opolitanAirports Comm’n , 914 F.2d 1076, 1081 (8t h Cir. 1990) (plaintiff claimed officers used excessiv e fo rce in making arrest). “Circumstances such as th e severity of the crime, whether the suspect po sed a threat to the saf ety of the officers or others, and whether the
su spect was resisting arrest are all relevant to th e reasonableness of the officer’s conduct.” Id.-15-

Applying the above standa rd, the district court found that defendants ’ decisions to use force and the amount of for ce used under the circumstances were objectivel y reasonable. The district court found that Moore wa s intoxicated, agitated, refused to comply with commands , kicked the arresting officer, continued to struggle an d attempt to get away, and posed an immediate threat to his
own safety and to the safety of the officers. Th e di strict court specifically rejected Moore’s claims tha t Novak threw him to the floor by the handcuffs and tha t Schmid t used the stun gun improperly or in a manne r inconsistent wi th department policy. But for the missing videotape, our review of the district court’s findings of fa ct would be straightforward. Each party presented a differ ent story of the incident, primarily through th e testim onyof witnesses; the stories were in shar p conflict; the district court made credibilit y determinations and believed defendants’ version of th e inciden t. Their testimony told a coherent and faciall y plaus ible story. Ordinarily, such a finding based o n cr edibilitydeterminations can “virtually never be clea r error.” Anderson , 470 U.S. at 575. However, Moor e argues that d efendants’ story would have been contradicted b y extrinsic evide nce-- the missing videotape. Moore argues the fact that the videotape is missing raised an i nference that the videotape would have supported his versio n of the incident.

The circumstances surrounding the disappearance of th e videotape are suspicious but not necessarily sinister

. The most the record shows is that the personnel at th e ja il had control of the videotape and that the videotap e has been misplaced or lost. Even if we assume fo r-16-

pu rposes of analysis that the fact that the videotape i s missing raised an inference in favor of Moore’s ve rsion of the incident, Baird’s testimony about the videotap e suf ficientlyrebutted this inference. According t o Bai rd’s testimony, the videotape did not contradic t defendants’ version of the incident. Baird testif ied that the vi deotape showed Moore making a movement towar d Lo bdell as they walked through the door and showed Nova k and Schmidt restraining Moore and “taking him to th e ground to control him.” She also testified that she di d not re call that the videotape showed either defendants ’ “b ody-slamming” Moore to the floor or using the stun gu n and that she would have remembered such conduct had i t appeared on the videotape.-17-

Baird also test ified that, after reviewing the videotape, she h ad concluded that the officers had complied wit h department poli cy regarding both the use of force and the use of the stun gun. Under these circumstances, w e cannot conclud e that the district court’s findings of fact ar e clearly erroneous.

Fin ally, Moore argues that the destruction o r secreting of the videotape violated his right to du e pro cess during his state criminal trial. Brief fo r Appellant at 21. We agree with the district court that , because Moore d id not prove that his state conviction had been i ndependently invalidated, his § 1983 claim fo r damages is barred by Heck v. Humphrey , 512 U.S. at 484-87. Slip op. at 13-15, citing Hamilton v. Lyons , 74 F.3d 99 , 103 (5th Cir. 1996) (holding judgment in favor o f pl aintiff based on finding that defendant violate d plaintiff’s constitutional rights by altering an d destroying evid ence relevant to charges against him would
ne cessaryimply invalidity of subsequent convictions an d would be barred by Heck v. Humphreyunless plaintif f proves his convictions or sentences have been reversed , expunged, invalidated, or otherwise called into qu estion). Th e district court did not err in dismissing Moore’s du e process claim. Acc ordingly, the judgment of the district court i s affirmed.

A true copy.

Attest:-18- CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.